Disqualification

If you’re driving from state to state, the rules of the road are generally consistent. While details may differ, a red light means “stop” in every state of the Union. But under our federal system, each U.S. jurisdiction has authority to regulate the practice of law — and under the resulting state ethics rules, not only the details, but even some of the basics may differ.

That’s spotlighted in a district court opinion issued earlier this year, denying a motion to disqualify counsel in a defamation case because plaintiff was not a “prospective client” under South Carolina’s ethics rules.

“If there is no conflict”

The plaintiff sued ten John and Jane Does, alleging he was defamed in a blog post. The plaintiff first threatened suit against the blogger, who hired counsel at a Greenville, S.C. firm, (“Wyche”). Ten days later, plaintiff’s lead counsel reached out to a different lawyer at Wyche. They discussed the possibility of the Wyche lawyer serving as local counsel for plaintiff, and plaintiff’s lead lawyer asked for a fee agreement “if there is no conflict.” The Wyche lawyer took the relevant names “for conflict purposes,” provided the firm’s rates, and said in an e-mail that “I hope we get the opportunity to work together.”

You can see where this is going, right? The next day, the Wyche lawyer — having discovered that the firm already represented the blogger — told plaintiff’s lawyer that the firm had a conflict and declined the representation.

Later, plaintiff issued a subpoena to the blogger, claiming that she had knowledge of the Does’ identities. When the Wyche firm appeared on behalf of the blogger, plaintiff moved to disqualify.

That’s where the Palmetto State’s ethics rules on prospective clients came into play.

Prospective client?

To safeguard the confidentiality interests of prospective clients, Model Rule 1.18 provides that if you obtain “information from [a] prospective client that could be significantly harmful to that person in the matter,” you and your firm are generally disqualified from adverse representation in the same or a substantially-related matter.

Who is a “prospective client” under the Model Rule? Anyone who consults with you “about the possibility of forming a client-lawyer relationship with respect to a matter” — even when no lawyer-client relationship ensues.

But South Carolina’s Rule 1.18 is more restrictive. It’s version defines a “prospective client” as someone who consults with a lawyer — but “only when there is a reasonable expectation that the lawyer is likely to form the relationship.”

That made all the difference to the court in ruling on plaintiff’s DQ motion. The court said that there was no evidence that a “commitment” was “likely” that the Wyche firm would represent the plaintiff. The “hope-we-can-work-together” comment was only a “polite courtesy,” the court said.

“Niceties,” are not binding commitments to represent someone, the court held, and “are not, absent unusual circumstances, reasonably interpreted to indicate a commitment is likely.” The plaintiff’s lawyer also clearly understood that before any engagement, Wyche had to check for conflicts.

Without having become a “prospective client” under South Carolina’s version of Rule 1.18, the plaintiff had no basis for disqualifying the Wyche firm.

Different rules, different outcome

The plaintiff here might have met the definition of “prospective client,” and been entitled to the protection of Rule 1.18, in a state that hews to the broader Model Rule language, instead of South Carolina’s more-restrictive version. So you must be aware of such nuances in the ethics rules of the road.

But you also must be diligent in not “hearing too much” when a prospective client reaches out to you. The Wyche lawyer who talked to the plaintiff’s lead counsel in this case didn’t get confidential information about the plaintiff before checking for conflicts.

That’s good policy. There are plenty of examples of successful DQ motions where a lawyer has listened to details — which prospective clients often want to relate — and only then discovered a conflict. The always-excellent Freivogel on Conflictscollects the cases. In worst-case scenarios, that can result in needing to decline the prospective engagement and step away from the one that raises the conflict. That’s the message of ABA Ethics Opinion 90-358 (1990) — an outcome no one wants.

Even though a Mississippi lawyer’s conflict of interest lasted only one day, that was enough for a U.S. magistrate judge to disqualify him from representing a client adverse to Allstate Insurance Co. on a coverage claim, in a ruling issued last week. Sending a termination letter to the insurer the day after accepting the new client’s case didn’t help the lawyer. The judge found that the lawyer’s duty of loyalty required him to turn down the case, in light of the fact that he had pending cases in which he was directly representing Allstate.

Hot potato doctrine

The court recognized that the key issue in the case was whether the lawyer could drop Allstate as a client, turning it into a “former client” for purposes of the conflict-of-interest rules. If so, then the “more lenient” substantial-relationship test would apply, in which the court looks at whether the new client’s matter is substantially related to the work the lawyer did for the former client. But if the lawyer takes on the new client and represents it concurrently with the now-adverse existing client without both clients’ consent, then the duty of loyalty under Model Rule 1.7 has been breached.

The “hot potato” doctrine prohibits a lawyer from turning an existing client into a former client by “firing” it in order to accept an engagement adverse to the existing client. The 1987 case that gave the principle its name is Picker International, Inc. v. Varian Associates, in which the federal district court judge said that “A firm may not drop a client like a hot potato, especially if it is in order to keep happy a far more lucrative client.”

Termination didn’t cure impropriety

In the Mississippi case, the court said that the lawyer’s conduct was understandable: he hadn’t received any new work from Allstate in over a year; his firm was wrapping up its work on the “handful” of cases it still had, the majority of which were near the end of their life-spans; and the firm planned to end its relationship with the insurer based on the fact that it was not getting new work.

Nonetheless, said the judge, the lawyer and his firm had an attorney-client relationship with Allstate when the lawyer signed a contract to represent the claimant against the insurer, and he couldn’t abandon his existing client by dropping it like a hot potato: “In withdrawing representation of Allstate to pursue a new, more attractive representation, [the lawyer] violated the duty of loyalty he owed to Allstate.”

Game of spuds

The question of when a client becomes a former client under conflict rules can be a nuanced one. For instance, the hot-potato doctrine may not operate when a conflict is “thrust upon” a law firm as a result of a client merger, the addition or new parties or other circumstance over which the firm has no control. Then, the firm may be able to choose to avoid disqualification by withdrawing from the representation that creates the conflict. See, e.g., Sabrix, Inc. v. Carolina Casualty Ins. Co. (D. Ore. 2003) (hot-potato rule did not apply where withdrawal followed another party’s naming of additional defendant that created conflict). And timing matters, too. For example, if a firm has a new client in mind for the future, may it terminate an existing relationship in order to prevent a conflict?

Bottom line: Be careful in working through these conflict issues so you don’t drop the ball — or the potato.

When a conflict of interest crops up during a case, Ethics 101 tells us that the “taint” of that conflict can spread, and potentially disqualify all the lawyers of the affected firm. Model Rule 1.10, “Imputation of Conflicts” explains the rule. But how far does that disqualification go? A New York appeals court examined this question in December, and reversed a DQ order in a personal injury suit.

“Associated in a firm”?

In Kelly v. Paulsen, the firm (“HHK”) represented two plaintiffs who had been injured in a motorcycle accident allegedly caused by the defendant. HHK filed suit on plaintiffs’ behalf in 2009. Four years later, a sole practitioner joined the plaintiffs’ team as co-counsel. Very shortly before trial in 2015, the defendant learned — allegedly for the first time — that HHK was representing plaintiffs. On the first day of trial, the defendant moved to disqualify HHK because the firm had also represented the defendant in “personal and business matters” for the previous 30 years. (The court didn’t explain these somewhat singular facts, particularly how a party doesn’t learn the identity of opposing counsel’s firm for six years while a suit is pending.)

Based on the conflict, HHK withdrew, leaving the solo as plaintiffs’ only lawyer. Defendant then moved to disqualify the solo as well, and the trial court granted the motion. On appeal, the Third Department reversed.

The court of appeals said that New York’s Rule 1.10(a) (like the Model Rule), bars lawyers who are “associated in a firm” from representing a client when a conflict of interest would preclude any one of them from doing so if the lawyer were practicing alone.

This imputation rule thus has the potential for spreading the “taint” (a word courts often use) of the primarily-disqualified lawyer to others.

Although the Rules don’t define the phrase “associated in a firm,” the court in Kelly found that the well-established meaning extends beyond partners and associates who are employed in the same firm — it also can include “of counsel” relationships, for instance.

Nonetheless, the court wrote, “not every lawyer who has any connection or relationship with a firm is considered to be ‘associated’ with that firm” for conflicts and imputation purposes. The question requires a factual analysis, and turns on whether the lawyer’s relationship with the firm is “sufficiently close, regular and personal.”

More like a contract lawyer

Here, the facts showed that the solo had his own separate office, didn’t receive any support services from HHK, and HHK didn’t “supervise” his work. The key factor, however, was that the solo averred that he never had access to any HHK files except plaintiffs’, never represented the defendant, was not aware of him or his business affairs before the motorcycle case, and never got any confidential information about the defendant from HHK or had access to such information.

The defendant argued that HHK had “undeniably shared” his confidential information with the solo practitioner, based on plaintiffs’ demand for a high settlement figure. Defendant said the demand indicated that the solo had received confidential information about his finances. But the court viewed that argument as mere speculation.

The solo’s role here, said the court, is “more akin to that of a contract lawyer” who gets a case referral and works from his or her own office as co-counsel. The court noted a 1999 New York ethics opinion that such a contract lawyer is not “associated” with the employing firm for conflicts purposes, and analogized that principle to the solo lawyer.

Key: sharing confidential information

There are a number of courts that, like Kelly, have held that taint doesn’t affect co-counsel, at least where there is no showing that co-counsel received confidential information about the party moving to disqualify. The always-excellent Freivogel on Conflicts collects the cases. But there are still decisions that go the other way, too. See, e.g.,j2 Global Communications Inc. v. Captaris Inc., (C.D. Cal. 2012) (imputing “outside in-house counsel’s” disqualification to firm). Bottom line: while information-sharing remains key, this is a fact-specific area, and it pays to be aware of nuances that can vary the outcome.

As we’ve predicted before, the increasing globalization of high-level legal practice continues to create questions about forms of legal practice – in particular, vereins, a structure aimed at letting firms based in different countries operate under a unified brand. Mega-firms Fulbright & Jaworski (subs. req.) and Dentons have faced motions to disqualify centered on such structural issues, and now a Texas ethics opinion issued last month questions whether lawyers in the Lone Star state can use a verein name on pleadings. (Hat tip to Dan Bressler and the Law Firm Risk Management blog for alerting us to the opinion.)

Five AmLaw 100 firms affected

In Opinion 663, the Texas Professional Ethics Committee concluded that under the state’s Disciplinary Rules of Professional Conduct, Texas lawyers in an organization such as a verein “may not use the name of the organization as their law firm’s name on pleadings or other public communications” unless all the names are those of current or former lawyers in the Texas firm or a predecessor firm.

According to an article in Texas Lawyer, five firms on the AmLaw 100, which lists the highest-grossing U.S. law firms, are Swiss vereins that include Texas lawyers, including DLA Piper, Baker & McKenzie, Hogan Lovells, Norton Rose Fulbright and Squire Patton Boggs.

The Committee based its opinion, which is advisory, on Texas’s Rule 7.01(a), which unlike the analogous Model Rule on firm names, expressly bars lawyers from practicing under a “a firm name containing names other than those of one or more of the lawyers in the firm,” (except for deceased/retired lawyers’ names or names of predecessor firms).

The Committee’s analysis used a hypothetical Texas firm formerly named “Smith Johnson,” that has joined an “international verein” and become known as “Brown Jones Smith.” The Texas lawyers in the verein would be violating Rule 7.01(a), said the Committee, because “there has never been a lawyer in the Texas law firm or any predecessor firm named Brown or Jones.”

In addition, like the analogous Model Rule, Texas Rule 7.02 prohibits “misleading” firm names, and the Texas Committee concluded that the use of the “Brown Jones Smith” name would also be misleading, by creating “the appearance that all lawyers in all the law firms that are in the verein are members of a single law firm when in fact they are not.” The firm’s statements about its composition in advertising disclaimers don’t diminish the misleading nature of the communication, the Committee said.

Be careful what you ask for?

According to Texas Lawyer, the Texas Committee issued Opinion 663 in response to an inquiry from Robert Newman, who is of counsel with Norton Rose Fulbright (a verein with Texas lawyers), and a former chair of the Committee. Asking for an advisory ethics opinion, and then getting an adverse one, is always a possibility, although even an adverse opinion at least tells you where you stand, ethically speaking. But the reactions of the current Committee chair and the mega-firms contacted by Texas Lawyer are interesting, and indicate that it will basically be business as usual for the firms, notwithstanding the (advisory) opinion. The Committee chair said that “Literally nothing is going to happen” unless someone files a grievance against a lawyer for using a verein name, which he said would be a “rare” occurrence.

For their part, two firms contacted by Texas Lawyer — Norton Rose Fulbright and Baker & McKenzie — said they do not plan to make any changes as a result of the ethics opinion. The magazine quotes the managing partner of Baker’s Dallas office, who said “We’ve been practicing in Texas as Baker & McKenzie since 1986 and plan to continue to do so.”

Whether this ethics opinion will resonate with bar regulators in other jurisdictions, and whether it will generate some disciplinary cases remains to be seen. Also interesting is the Texas committee’s view that the law firms in the verein are not members of the “same firm,” which might have a potential impact on analyzing future conflict of interest issues, among other things. Stay tuned for further developments.

Courts often analyze motions to disqualify by balancing the need to uphold professional standards against the rights of clients to choose their lawyers freely. The New Jersey court of appeals struck that balance earlier this month in upholding the disqualification of a lawyer who violated a confidentiality order, finding that the lawyer knowingly disobeyed a court order, among other violations.

Looking for class action plaintiffs

The lawyer sued a car dealership and others in a putative class action, alleging fraud and the violation of various state consumer statutes. The parties agreed on and the court entered a confidentiality order that allowed any party to designate confidential documents produced in discovery as “Attorneys’ Eyes Only.”

The confidentiality order mandated that the parties could use such material “solely for purposes of the prosecution or defense of this action.”

After several twists and turns, the suit was trimmed of its class allegations and proceeded solely against the dealership.

However, as the trial court wrote, “lo and behold, after the dealer produced the documents under the confidentiality order, a new [class action] lawsuit was filed in [another] county,” against the same defendant, based on the same theories, and initiated by the same lawyer, who admitted that she had used the “Attorneys’ Eyes Only” documents in soliciting the named class-action plaintiffs to file suit in the second action.

The lawyer claimed that this did not violate the confidentiality order; the trial court disagreed, and “relieved [the lawyer] from serving as plaintiff’s counsel” because of the violation. The trial judge also referred the matter to the state Office of Attorney Ethics. Following the client’s interlocutory appeal, the appellate division affirmed the disqualification order.

Inherent authority to impose DQ remedy

New Jersey’s Rule of Professional Conduct 3.4(c), identical to Model Rule 3.4(c), forbids a lawyer to “knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists.”

The appeals court held that the lawyer knowingly used materials designated as “Attorneys’ Eyes Only” to solicit clients and to initiate a separate lawsuit against the car dealership, and that the trial court had not abused its discretion in using its inherent powers to sanction the lawyer for her ethical violation by disqualifying her.

Quoting from its prior holdings on balancing the need for ethical conduct against client choice, the court of appeals said that “there is no right to demand to be represented by an attorney disqualified because of an ethical requirement.”

“We underscore that an attorney’s failure to conform to his or her ethical obligations may imperil their client’s right to counsel of their choice.”

Not only did the lawyer’s client lose out; the lawyer put her own license in jeopardy, with the court’s referral to the state disciplinary agency.

When you start planning to leave your firm for greener pastures, lots of ethics issues can crop up (bad pun). One of the most acute issues is if you get an offer to join a firm that is on the opposite side of a matter you are already handling. That was the situation in a recent bankruptcy case, In re US Bentonite, Inc., and it led the court to order the firm representing a Chapter 11 debtor-in-possession to disgorge several months’ worth of fees. The firm avoided disqualification, however, in part because the lawyer’s new firm had screened him.

Bankruptcy rules of play

As first reported in the excellent DQed blog, a firm represented the debtor-in-possession through a firm associate. Two secured creditors had claims to virtually all the debtor’s assets. The firm representing one of the creditors offered the associate a job, which the associate accepted on March 11, 2015. But the associate failed to disclose the accepted offer to his supervising attorney for six weeks. And even after tardily informing his firm, the associate kept signing and filing pleadings on behalf of the debtor until almost three months after accepting the job offer.

During this time, the debtor and creditors arrived at a settlement “divvying up the debtor’s previously liquidated assets among the secured creditors and stipulating to dismiss the bankruptcy case. On June 5, the associate moved to withdraw (without disclosing the conflict).” It was not until June 15 that the supervising attorney disclosed to the court in a supplement to the firm’s Application for Employment of Attorneys that the associate had accepted a job with the firm representing the creditor. The U.S. Trustee moved to disqualify the firm representing the debtor and to deny all compensation to it.

The Bankruptcy Code and Rules require that lawyers representing debtors and their estates be “disinterested,” and impose a continuing duty to disclose all connections with debtors, creditors, other parties in interest and “their respective attorneys and accountants.”

Although the court’s opinion is lengthy, it was a no-brainer for it to conclude that “accepting a position at a law firm representing one of the largest creditors in a case where one represents the debtor must be disclosed, [and] . . . the connections between the firms and the parties at a minimum created the appearance of impropriety.”

DQ avoided, but disgorgement ordered

The result: although avoiding disqualification and disgorgement of all fees, the firm representing the debtor had to disgorge fees from the date the associate accepted the job offer — even though the firm hadn’t known about the situation for the first month.

The court said and/or implied that DQ was not warranted for several practical reasons: (1) the lawyer creating the conflict had left the firm representing the debtor; (2) the case was nearly concluded, and the cost and delay involved in having the debtor retain new lawyers at that point would be “of no benefit,” particularly in a case where there was insufficient money to satisfy all claims; (3) the settlement agreement itself was not deemed to be tainted where the evidence established it was reached among four different parties, at arms’ length; and (4) the court obliquely acknowledged that the migrating lawyer had been screened from participation in the case after he arrived at his new firm.

Not just for bankruptcy lawyers….

The scenario that the court dealt with in In re US Bentonite, Inc. — negotiating for a job with counsel representing the opposing party — is not unique to the bankruptcy context.

In 1996, the ABA ethics committee considered it in Formal Op. 96-400, concluding that “a lawyer’s pursuit of employment with a firm or party that [the lawyer] is opposing in a matter may materially limit [the lawyer’s]is representation of [the] client, in violation of Model Rule 1.7(b). Therefore, the lawyer must consult with [the] client and obtain the client’s consent before that point in the discussions when such discussions are reasonably likely to materially interfere with the lawyer’s professional judgment.” The more involved the lawyer is in the client’s matter, the more likely it is that a material-limitation conflict will arise.

Comment [10] to Rule 1.7 echoes the committee’s advice: “When a lawyer has discussions concerning possible employment with an opponent of the lawyer’s client, or with a law firm representing the opponent, such discussions could materially limit the lawyer’s representation of the client.” See also ABA Formal Op. 09-455 (Oct. 8, 2009), “Disclosure of Conflicts Information When Lawyers Move Between Law Firms.”

Role of ethical screens

In Bentonite, the debtor’s firm avoided disqualification based at least partly on the fact that the migrating associate’s new firm apparently screened him when he arrived. (The court’s order says that the new firm “shall continue to screen” the lawyer from the case.)

If your jurisdiction has adopted a version of Model Rule 1.10 and accepts screening as a way to avoid disqualification of a law firm in this situation, it can help ease lawyer migration quandaries under some circumstances. As comment [7] warns, however, “even where screening mechanisms have been adopted, tribunals may consider additional factors in ruling upon motions to disqualify a lawyer from pending litigation.”

Celgard, LLC v. LG Chem, Ltd., a disqualification case decided by the Federal Circuit, continues to make waves. Insightful commentary from Ronald Rotunda is here; he notes that typing the case name into Google yields more than 5,000 hits.

Last December, when the opinion came out, there was concern (see here and here) that if read broadly, Celgard could signal a dangerous standard under which concurrently representing clients with adverse interests up and down a single supply chain might be sufficient to create a disqualifying conflict of interest.

The ruling should not be read broadly, however — in its opinion, the court expressly rejects such a reading. But Celgard does yield lessons about possible conflicts in concurrently representing clients who are economic competitors.

Celgard, and LG Chem and Apple, oh my!

The case involves a patent dispute between Celgard and defendant LG Chem, which makes lithium batteries alleged to infringe on Celgard’s patent. Jones Day sought an injunction on behalf of Celgard against LG Chem. While not a party to the dispute, Apple uses LG Chem’s batteries in its products.

Rule 1.7 of the North Carolina Rules of Professional Conduct on concurrent conflicts of interest, patterned after Model Rule 1.7(a)(1), bars representation “directly adverse” to another client that the lawyer represents in an unrelated matter. Jones Day’s representation of Celgard had foreseeable economic consequences for Apple, because Apple’s supply of lithium batteries was subject to potential disruption were Jones Day to win an injunction on behalf of Celgard.

The Federal Circuit upheld the district court’s determination that Jones Day’s representation was “directly adverse” to Apple, and that Apple had the right to intervene and to disqualify Jones Day.

Injunction used as leverage

The key to the Federal Circuit’s disqualification holding was that even before Jones Day became involved as counsel, Celgard had sent Apple a copy of its injunction motion, and “requested to work with Apple to find a mutually beneficial business arrangement to resolve the issues around infringement of Celgard’s intellectual property,” the court said.

Thus, Jones Day’s representation was not adverse to Apple merely in an economic sense; rather, said the court, its client, Celgard, additionally targeted Apple “in an attempt to use the injunction as leverage in negotiating a business relationship [with Apple].” Thus, the court deemed Jones Day’s representation of Celgard to be adverse to Apple’s interests, including its “legal obligations.”

The court expressly disclaimed any intent to hold that Rule 1.7 covered conflicting representations “merely because the client is up or down the supply chain.” Thus, contrary to some early expressions of concern, the case does not upset the usual rule, which, as Rotunda says, is that “there is no conflict simply because a law firm represents a client [in a case] and the result in the case would make it more difficult or more expensive for another client [represented by the lawyer in unrelated matters] to purchase a good or service.”

The usual rule is enunciated in comment [6] to Rule 1.7: “[S]imultaneous representation in unrelated matters of clients whose interests are only economically adverse … does not ordinarily constitute a [direct adversity] conflict of interest.”

No broad reach — but caution still required

Recognizing that Celgard’s holding is a limited one, and that it depended on some unique facts, the ruling is a good opportunity to highlight two additional points about representing clients whose interests are economically adverse to each other:

First, while the circumstances might not raise a “direct adversity” conflict under Rule 1.7(a)(1), you may still have a “material limitation” conflict under Model Rule 1.7(a)(2) — which arises when “there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client …” If your ability to consider, recommend or carry out an appropriate course of action for Client A will be materially limited by your loyalty to Client B, as an economic competitor of Client A (or could be perceived to be), then you should consider whether you need consent — from both clients — in order to proceed.

Second, check whether you or your firm has agreed to the terms of “outside counsel guidelines,” which an increasing number of large clients require as a condition of the engagement. Such guidelines may place limits on your ability to take on the representation of economic competitors of those clients. Knowing what those guidelines provide before you accept the representation of another client is clearly the best way to steer clear of conflicts problems.

Small may be beautiful, but when it comes to law firms, small can signal disqualification troubles that a bigger firm might sometimes be able to avoid, according to the reasoning of a recent opinion.

We’ve posted here before about screening non-lawyer personnel in order to avoid imputed disqualification when a secretary or paralegal arrives at your firm with a conflict.

In the recent case, Ullman v. Denco, a New Mexico federal court magistrate judge granted disqualification, booting defendants’ counsel from eleven consolidated employment cases after the firm hired a paralegal from the firm representing the plaintiffs.

Side-switching paralegal

The paralegal had worked extensively on the cases; she had interviewed most of the clients, and had detailed information about plaintiffs’ legal strategies and bottom line settlement numbers.

Under those circumstances, the side-switching paralegal clearly could not herself participate in the consolidated case. The question was whether her personal disqualification would be imputed to the entire six-lawyer defense firm — especially considering the fact that the defense firm had quickly put up an elaborate ethical screen.

Ethical screen terms

The screen isolated the paralegal’s office from the locked office where the files on the cases were kept; mail relating to the case was separately routed; electronic documentation was password protected; an office-wide “admonition” was issued against sharing confidential information and even speaking openly about the cases within the office.

The magistrate judge held that the paralegal’s disqualifying conflict would not be imputed to the rest of the firm. Comment [4] to New Mexico’s version of the conflict imputation rule, Model Rule 1.10, says that the disqualification rules do not “prohibit representation by others in the law firm where the person prohibited from involvement in a matter is a non-lawyer, such as a paralegal or legal secretary.”

However, the defense firm’s continued representation of its employer clients was doomed anyway, because the magistrate judge held that even the comprehensive screen the firm proposed “would not be effective” — in part because the firm was just too small.

Small firm — harder to make a screen work

The court recognized that screening, “if effective to protect any client confidences that the non-lawyer gained from prior employment, can avoid the harsh remedy of disqualification.”

But here, a factor that “weigh[e]d heavily” against the screen’s effectiveness was that the defense firm was “relatively small.” Three of the lawyers, or half the firm’s active attorney roster, were involved in the consolidated case; all lawyers and support staff worked in the same building; and the firm’s staffing needs were so pressing that they could not delay the paralegal’s start date even three weeks, until after a scheduled mediation of the case. The firm’s small size made it unlikely that the confidential information could actually be sealed off.

Other factors mandating DQ

In addition to the defense firm’s small size, the magistrate judge noted that the information the paralegal had was extremely sensitive and relevant, and that she had been very heavily involved on the other side of the case. Finally, there was a short time lag between the defense firm’s first contact with the paralegal and implementation of the screen. The gap was only two days — but combined with the other factors, it helped scuttle the defense firm’s representation.

Even a good screen…

The magistrate judge did not fault the firm’s screening procedures — in fact, he said they met and even exceeded measures endorsed in other disqualification cases. But combined with the firm’s small size and the other factors, even a good screen did not suffice.

And for firms large and small, this case is also a reminder about the importance of conflict checking everyone who joins the firm — even non-lawyers.

Although almost every U.S. jurisdiction now has some version of the ABA’s Model Rules of Professional Conduct, some of us who have been around awhile remember the old Disciplinary Rules, which governed lawyer conduct under the former Model Code of Professional Responsibility. (Or maybe you remember the Disciplinary Rules because you practice in a state that was late to adopt a version of the Model Rules. Or maybe, like me, you’ve both been around awhile and live in one of those late-adoption states. I’m talking about you, Ohio.)

In any event, the former Model Code included Canon 9, which stated “A Lawyer Should Avoid Even the Appearance of Impropriety.” While not actually a Disciplinary Rule, the “appearance of impropriety” was “a favorite of some courts, which quoted it with great frequency over the years,” as Ronald Rotunda and John Dzienkowski note in their useful treatise, Legal Ethics — The Lawyer’s Deskbook on Professional Responsibility. It was especially used as a basis for disqualifying lawyers for a broad range of conduct, ranging from conflicts to other kinds of misconduct.

Deeming the “appearance of impropriety” standard to be unfairly vague and imprecise, the Kutak Commission, which drafted the 1983 Model Rules, rejected it. Until its amendment in 2003, Model Rule 1.9, the rule on former-client conflicts, even had a comment consisting of an express critique of the appearance of impropriety as a standard for disqualification, saying that it could “be taken to include any new client lawyer relationship that might make a former client feel anxious,” and that under the standard, disqualification was “little more than a question of subjective judgment by the former client.”

Nonetheless, courts in some jurisdictions have continued to use the appearance of impropriety as a standard for disqualification even after the professional responsibility rules of the state have dropped it. (Prof. Keith Swisher’s excellent blog DQed collects cases here.)

Kentucky used to be one such jurisdiction, but no longer. Earlier this month, in Marcum v. Scorsone, the Kentucky Supreme Court overturned 18 years of precedent, holding that “disqualification based on an appearance of impropriety is inappropriate under the existing Rules of Professional Conduct,” and that if that were the standard, “all the former client has to do is claim discomfort with the subsequent representation to create the appearance that something untoward is going on …” Moreover, the court said, the standard “creates the impression that courts are ruling based on appearances rather than facts.”

The court remanded the case to the trial court so that it could apply the correct standard.

So the appearance of impropriety is dead — at least in Kentucky. If faced with a disqualification motion — or if making one — you should research carefully to see how courts in your jurisdiction treat the old standard. It will make a difference in how easy or hard it might be to prevail, whichever side of the motion you are on.

In the olden days, lawyers and judges were men, couples lived together only after a wedding, divorce was less common, and marriage equality was not on the radar. So there was little occasion to wonder about ethical conflicts of interest that might be raised by lawyers or judges being married to each other, cohabiting with each other and divorcing each other.

But that was then. Now, the bar includes lawyers and judges of all genders. Lawyers and judges of all genders and sexual orientations are in intimate relationships with each other, with or without being married. And divorce is an unfortunate fact of life for many dual-legal-career couples.

All in the family?

What impact do these lawyer couplings and uncouplings have on ethical conflicts of interest? Ethics opinions and cases have considered the issue; most have found no per se conflict of interest under several sets of circumstances.

In the latest opinion, the Florida Supreme Court’s Judicial Ethics Advisory Committee said on January 15 that a judge was not disqualified from sitting in cases where a party was represented by the judge’s former spouse’s former law partner. The judge received no alimony or support from the judge’s former lawyer-spouse, the committee noted, and it opined that “no reasonable person would question the judge’s impartiality” under the circumstances. The relationships were not relevant to the question of disqualification, the committee said, and need not even be disclosed.

Would the result have been different if, instead of the tenuous connection presented to the ethics committee, the facts involved a contentious divorce, and a lawyer who drew as a judge on a case his or her former spouse? Perhaps.

Some opinions from ABA and from other states

Thirty-five years ago, the ABA Ethics Committee, in Formal Opinion 340 (1975) (subscription required), noted that women were entering the profession in increasing numbers, and that some firms were apparently reluctant to hire a lawyer married to another lawyer, for fear of some disqualifying conflict.

The committee said that no inherent conflict was raised by lawyer spouses, even when they might represent different parties opposed each other in the same matter. Rather, the existence of some ethical problem has to be determined each individual case. “We cannot assume that a lawyer who is married to another lawyer necessarily will violate any particular disciplinary rule, such as those that protect a client’s confidences … and that forbid representation of differing interests.” The committee cautioned against pillow-talk, though — the possibility of an inadvertent breach of confidentiality might be “substantial,” given the closeness of the relationship.

Following the ABA’s opinion, several states issued similar opinions, including Kentucky (lawyer can represent client where spouse works in same firm as opposing counsel); Vermont (no per se rule against wife representing criminal defendants where members of husband’s firm represent criminal defendants with conflicting interests); and New York (spouse of assistant district attorney can work in the same county as an assistant public defender, though husband and wife should not appear on opposite sides of the same matter). See alsoMontana (lawyer spouses may not directly represent opposing parties without client consent).

In DCH Health Services Corp. v. Waite, the California state court of appeals held in 2002 that a lawyer should not be disqualified merely because the lawyer’s wife, a judge, had formerly served as a corporate director of the opposing party. “We reject the suggestion that [ethics] issues should be resolved solely by reference to the marriage relationship,” the court wrote, and asked “is the likelihood of disclosure any less when two lawyers are sharing a household without being married or when they are involved in a dating relationship?”

Law license; marriage license

If you have a conflict issue involving lawyer-family relationships, you should carefully research the opinions and cases from your jurisdiction, to make sure that you stay on the right side of the rules. But we can be glad, at least in some ways, that the olden days are over.

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